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Definition
tortfeasors actions that cause a reasonably foreseeable injury to victim
- natural and probable |
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| K to reimburse another for actual loss suffered |
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1) sharing of payment for debt/judgment among those liable
2) right of Party paid entire debt to COLLECT fair share from another |
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| But for D's actions P's injuries would not have happened |
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Term
| substantial factor analysis |
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- test for INDIRECT CAUSATION in NEGL
- tortfeasor liable if conduct was SUB factor |
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| cause of injury - ACTUAL & FACTUAL |
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Term
| elements of res ipsa loquitur |
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Definition
1) D exclusive control
2) PRESUMPTION OF NEGL - P injury normally wouldn't happen
3) D MUST be in better position to prove LACK of Negl than P is to prove |
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"the things that speaks itself"
* rebuttable presumption that D is negligent
* shifts BURDEN to D |
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| D burden of proof to refute P evidence in lawsuit |
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occupation that REQ's specialized, advanced education, training & knowledge
Skill = intellectual |
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| professional community standard of care |
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used in NEGL cases involving D's w/special skills & knowledge
* in MAL common to use NAT'L standard |
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| Foreseeable Plaintiff's theory |
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Definition
(*Proximate cause*)
if injury to victim reasonably foreseeable as consequence, then scope INCLUDES victim |
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| persons whose injuries are NOT reasonably anticipated as result of actions |
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| in NEGL law defined in terms of those individ's who might foreseeably be injured as result of actions |
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due care
(aka reasonable care) |
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Definition
| degree of care a person of ordinary prudence would exercise in similar situation |
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1)obligation to obey law
2) legal obligation to another, who has a corresponding right |
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notion that specific action, under certain circumstances, would produce anticipates result
// proximate cause |
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| injury that a reasonably prudent person SHOULD HAVE anticipated |
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Definition
JUDGE ORDERS - 2 sides of complex case to SMALL jury
* parties may agree in advance to be BOUND by decision
* or may use the jury interviews to make settlement |
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Definition
2 sides chose a 3rd Party to decide a dispute
* often retired judge |
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panel of EXECs from 2 companies engaged in COMPLEX dispute.
* a NEUTRAL MODERATOR helps 2 sides reach agreement |
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Definition
*OUTSIDE help settling dispute
*NOT binding
*PERSUASIVE |
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Definition
resolution of dispute by person (NOT judge) --> BINDING
often for K's, labor or construction |
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| alternative dispute resolution |
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Definition
ADR - ways to resolve a legal issue w/o court decision
ex: arbitration, mediation, mini trial, rent-a-judge, summary jury trial |
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Definition
Issue
Rules of law
Application to facts
Conclusion |
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| TORT cases need these 4 elements |
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Definition
1) DUTY
2) Breach of duty
3) causation
4) damages |
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Definition
| injury DESIGNED to injure person or property (ex. battery) |
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| failure to exercise a reasonable amount of care in situation that causes harm to some one or thing WIHOUT intent to do harm |
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Strict liability
(aka absolute liability) |
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Definition
* legal responsibility for damage or injury
* regardless of intent, negligence or fault
* ex: products liability |
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CIVIL wrong, must include:
1) legal duty owed a person
2) breach of that duty
3) HARM as result of breach |
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| taking the victim as you find him |
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Definition
| victim's injuries were reasonably foreseeable even if tortfeasor was unaware of victim's peculiar physical health or other pre-existing conditions |
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| reckless or willfully acting w/deliberate indifference to the effect the action will have on others -->> court may allow punative |
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| loss of spouse's services, companionship, ability to love & have sex |
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"let the master answer"
employer is responsible for most harm caused by employee acting w/in scope of employment ==> vicarious liability |
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| range of actions w/in which employee is considered to be doing work for employer |
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* conduct of employee that falls outside the scope of employment
* purely for the benefit of the emp'ee
* employer NOT responsible |
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Definition
when employees commit torts coming or going from work
* for respondeat superior - helps decide if employees actions fall outside scope |
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| k w/employer to do particular piece of work by OWN METHODS & under OWN CONTROL |
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| person does not OWN real estate but USES it ex: tenants / lessees |
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* item dangerous to small kids, but so interesting it attracts them
* if keep one on property in way that attracts kids LIABLE & responsible for INJURY |
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4 part test:
Attractive nuisance |
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Definition
1) owner must KNOW (or reason to) of artificial condition
2) structure, instrumentality or condition MUST be alluring & endangering
3) presence of kids reasonably expected
4) danger posed to child outweighs cost of making safe |
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Definition
| [Principal] has legal responsibilities for ACTS of another [agent] b/c of special relationship EX: employer |
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Definition
person at a place by invitation
*owner owes highest duty |
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Definition
| person on property w/permission, but w/OUT any enticement by owner AND no financial advantage to owner |
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Definition
- mental anguish, non-physical harm that MAY be compensated
- immediate as feelings @ injury OR
- long lasting grief, shame, humiliation, despair, etc |
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Term
negligent infliction of emotional distress
[NIED] |
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Definition
1) outrageous conduct by T'f'or
2)reasonably anticipate would produce
3) significant & reasonably foreseeable injury
4) breach of duty
5) victim is reasonably foreseeable P |
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Definition
OLD-- used in very few states
damages for ED can NOT be had unless NEGL involved some physical impact |
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| physical manifestations rule |
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Definition
NIED cases apply
- P may recover damages if physical symptoms accompany mental anguish -
ex- ulcers, sleeplessness, etc |
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Definition
(some states)
P must be in danger of PHYSICAL harm, frightened by danger to collect damages that result from seeing another party injured |
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| family relationships rule |
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Definition
NIED
- a bystander may recover damages if he witnesses tortfeasor injuring 1 (or >) of bystander's relatives |
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NIED
bystander can recover so long as perceives event DIRECTLY through their OWN senses |
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Definition
negl b/c it violates law or statute
per se = in itself |
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DEFENSE
* P's own negl contributed to injuries
* some states this BARS any recovery |
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Term
| last clear chance doctrine |
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Definition
| P rebuttal to Contributory - saying D had last opportunity to avert harm and failed to do so, so that P can recover |
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Term
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Definition
DEFENSE
* used in many states
* amount of fault on each side, measured & side w/LESS fault given damages of difference in magnitude b/w 2 faults |
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Term
Culpability Factoring
(Liability apportionment) |
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Definition
DEFENSE
* amount of fault on each side, decided by trier of fact, into % then subtracted = award
ex: P 25% fault, D 75% faoult * $100,000 damages = fair |
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| knowingly & willingly exposing yourself or property to possibility of harm |
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| law s/b applied in a way that promotes the good & welfare of the people |
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| laws that set MAX amount of TIME after something has happened for it to be acted upon in court |
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Term
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Definition
1) Contributory Negligence
2) Last Clear Chance
3) Comparative Negligence
4) Assumption of risk
5) Statute of Limitations |
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